Federal Register / Vol. 61, No.
208 / Friday, October 25, 1996 / Notices
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Volume III
Alabama
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FL960015 (March 15, 1996)
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Volume IV
Illinois
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IL960002 (March 15, 1996)
IL960016 (March 15, 1996)
Indiana
IN960001 (May 17, 1996)
IN960002 (March 15, 1996)
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IN960016 (March 15, 1996)
IN960017 (March 15, 1996)
IN960020 (March 15, 1996)
IN960039 (March 15, 1996)
IN960059 (May 24, 1996)
IN960060 (August 2, 1996)
IN960061 (August 2, 1996)
Volume V
Iowa
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IA960019 (March 15, 1996)
IA960038 (March 15, 1996)
Kansas
KS960008 (March 15, 1996)
KS960012 (March 15, 1996)
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Volume VI
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Washington
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General Wage Determination
Publication
General wage determinations issued
under the Davis-Bacon and related Acts,
including those noted above, may be
found in the Government Printing Office
(GPO) document entitled ‘‘General Wage
Determinations Issued Under The Davis-
Bacon and Related Acts’’. This
publication is available at each of the 50
Regional Government Depository
Libraries and many of the 1,400
Government Depository Libraries across
the country.
The general wage determinations
issued under the Davis-Bacon and
55321
related Acts are available electronically
by subscription to the FedWorld
Bulletin Board System of the National
Technical Information Service (NTIS) of
the U.S. Department of Commerce at
(703) 487–4630.
Hard-copy subscriptions may be
purchased from: Superintendent of
Documents, U.S. Government Printing
Office, Washington, D.C. 20402, (202)
512–1800.
When ordering hard-copy
subscription(s), be sure to specify the
State(s) of interest, since subscriptions
may be ordered for any or all of the six
separate volumes, arranged by State.
Subscriptions include an annual edition
(issued in January or February) which
includes all current general wage
determinations for the States covered by
each volume. Throughout the remainder
of the year, regular weekly updates are
distributed to subscribers.
Signed at Washington, D.C. this 18th day
of October 1996.
Philip J. Gloss,
Chief, Branch of Construction Wage
Determinations.
[FR Doc. 96–27153 Filed 10–24–96; 8:45 am]
BILLING CODE 4510–27–M
Pension and Welfare Benefits
Administration
[Application No. D–10240, et al.]
Proposed Exemptions; Beall
Corporation
AGENCY: Pension and Welfare Benefits
Administration, Labor.
ACTION: Notice of Proposed Exemptions.
SUMMARY: This document contains
notices of pendency before the
Department of Labor (the Department) of
proposed exemptions from certain of the
prohibited transaction restriction of the
Employee Retirement Income Security
Act of 1974 (the Act) and/or the Internal
Revenue Code of 1986 (the Code).
Written Comments and Hearing
Requests
All interested persons are invited to
submit written comments or request for
a hearing on the pending exemptions,
unless otherwise stated in the Notice of
Proposed Exemption, within 45 days
from the date of publication of this
Federal Register Notice. Comments and
request for a hearing should state: (1)
the name, address, and telephone
number of the person making the
comment or request, and (2) the nature
of the person’s interest in the exemption
and the manner in which the person
would be adversely affected by the
exemption. A request for a hearing must
also state the issues to be addressed and
include a general description of the
evidence to be presented at the hearing.
A request for a hearing must also state
the issues to be addressed and include
a general description of the evidence to
be presented at the hearing.
ADDRESSES: All written comments and
request for a hearing (at least three
copies) should be sent to the Pension
and Welfare Benefits Administration,
Office of Exemption Determinations,
Room N–5649, U.S. Department of
Labor, 200 Constitution Avenue, N.W.,
Washington, D.C. 20210. Attention:
Application No. stated in each Notice of
Proposed Exemption. The applications
for exemption and the comments
received will be available for public
inspection in the Public Documents
Room of Pension and Welfare Benefits
Administration, U.S. Department of
Labor, Room N–5507, 200 Constitution
Avenue, N.W., Washington, D.C. 20210.
Notice to Interested Persons
Notice of the proposed exemptions
will be provided to all interested
persons in the manner agreed upon by
the applicant and the Department
within 15 days of the date of publication
in the Federal Register. Such notice
shall include a copy of the notice of
proposed exemption as published in the
Federal Register and shall inform
interested persons of their right to
comment and to request a hearing
(where appropriate).
SUPPLEMENTARY INFORMATION: The
proposed exemptions were requested in
applications filed pursuant to section
408(a) of the Act and/or section
4975(c)(2) of the Code, and in
accordance with procedures set forth in
29 CFR Part 2570, Subpart B (55 FR
32836, 32847, August 10, 1990).
Effective December 31, 1978, section
102 of Reorganization Plan No. 4 of
1978 (43 FR 47713, October 17, 1978)
transferred the authority of the Secretary
of the Treasury to issue exemptions of
the type requested to the Secretary of
Labor. Therefore, these notices of
proposed exemption are issued solely
by the Department.
The applications contain
representations with regard to the
proposed exemptions which are
summarized below. Interested persons
are referred to the applications on file
with the Department for a complete
statement of the facts and
representations.
Beall Corporation 401(k) Profit Sharing
Plan (the Plan) Located in Portland, OR
[Application No. D–10240]
55322 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices
Proposed Exemption
The Department is considering
granting an exemption under the
authority of section 408(a) of the Act
and section 4975(c)(2) of the Code and
in accordance with the procedures set
forth in 29 CFR Part 2570, Subpart B (55
FR 32836, 32847, August 10, 1990). If
the exemption is granted, the
restrictions of sections 406(a) and
406(b)(1) and (b)(2) of the Act and the
sanctions resulting from the application
of section 4975 of the Code, by reason
of sections 4975(c)(1)(A) through (E) of
the Code shall not apply to the proposed
cash sale (the Sale) by the Plan of four
acres of unimproved real property (the
Land) to the Diamond Beall
Development Corporation, an Oregon
general partnership and party in interest
with respect to the Plan, provided that
the following conditions are satisfied:
(1) the Sale is a one-time transaction for
cash; (2) the Plan experiences no losses
nor incurs any expenses as a result of
the Sale; (3) the Plan receives in cash
the greater of $479,160, or the fair
market value of the Land as determined
at the time of the Sale; and (4) the terms
of the Sale are no less favorable to the
Plan than those it would have received
in similar circumstances when
negotiated at arm’s length with
unrelated third parties.
Summary of Facts and Representations
1. The Plan is a defined contribution
profit sharing plan which is intended to
satisfy the qualification requirements of
sections 401(a) and 401(k) of the Code.
The Employer may make discretionary
matching contributions and/or profit
sharing contributions. The Plan has
approximately 136 participants and
beneficiaries who would be affected by
the transaction. As of October 31, 1995,
the fair market value of the net assets of
the Plan was $6,457,677.
2. St. Johns Corporation (SJC) is a
holding company and the sole owner of
Beall Corporation (the Employer),
employer of a portion of Plan
participants. Beall Corporation is the
sole owner of several subsidiaries that
employ the balance of Plan participants.
The applicant is Jerry E. Beall, acting
as General Partner of the Diamond Beall
Development Company. Mr. Beall is the
principal owner of SJC, which owns
property adjacent to the Land. Mr. Beall
is also a trustee of the Plan.
3. On February 10, 1975, the Land
was purchased for the Plan as a long-
term real estate investment for $92,000
from the Port of Portland, an unrelated
third party.1 The property is located in
1 TheDepartment expresses no opinion as to
whether the Plan’s acquisition and holding of the
the Rivergate Industrial District in
Portland, Oregon. The Land consists of
4 acres of vacant land and is located
adjacent to property where SJC conducts
its operations. Mr. Beall represents that
the Land has not been leased or used by
any parties since the time of the
purchase.
The aggregate real estate taxes and
maintenance fees for 1975 through 1996
were $90,284.09. The applicant further
represents that these were the only costs
incurred by the Plan in carrying the
property.
4. The Land was appraised as of
January 1, 1996 (the Appraisal) by Karl
L. Lucke (Mr. Lucke), an independent
real estate appraiser certified in the
State of Oregon. Mr. Lucke relied on the
Direct Sales Comparison (Market)
Approach exclusively and estimated
that as of January 1, 1996, the fair
market value of the Land was $2.50 per
square foot, for a total of $436,000. The
Appraisal includes the following
description of the Land and its
surrounding neighborhood: ‘‘* * * the
streets and railroad system are being
expanded and construction activity has
increased lately. The Rivergate
Industrial District is a growing
industrial area * * * the location and
available land make this a desirable
place for industrial development and
demand is growing for sites * * * the
subject property lies in the path of
growth.’’ The Appraisal also states that
the Rivergate District has experienced
significant recent activity, and that
prices for Rivergate sites have increased
over the last few years.
Because the Land is located on the lot
adjacent to SJC’s business facilities, Mr.
Lucke was asked to determine whether
there should be any premium value
associated with the Land. In this regard,
Mr. Lucke states that there was
insufficient market data to support a
premium for an adjacent landowner or
related company with respect to the
proposed transaction.
5. The applicant provided information
received from the Port of Portland in
August, 1996, regarding the Port’s recent
list prices for the remainder of the
undeveloped Rivergate Industrial
District. Current list prices, and the
prices of sales closing subsequent to the
January 1996 Appraisal, reflect that
prices for parcels similar to the Land
have increased 20 to 25% within the
past year, after several years of nominal
appreciation.
In addition, the Port’s information
shows that the three sales of comparable
Land violated any relevant provision of Part 4,
Subtitle B, of Title 1 of the Act, and no exemption
from such provisions is proposed herein.
parcels that have closed subsequent to
the Appraisal were for $2.75 to $2.86
per square foot. Accordingly, the
applicant proposes to pay $2.75 per
square foot for the Land, for a total of
$479,160.
The applicant represents that the
Land will be revalued at the time of the
proposed transaction, in order to
establish its fair market value.
7. Mr. Beall, as General Partner of
Diamond Beall Development
Corporation, proposes to purchase the
Land from the Plan in a one-time cash
transaction. The Plan will pay no real
estate commissions or other costs
associated with the sale of the Land. As
of October 31, 1995, the Land
represented 6.7% of the Plan’s total
assets. The applicant represents that
considering the cost basis of the
property, the investment has not
performed well in that the Plan has
received an annual return of
approximately 4.3%, based on its initial
purchase price, subsequent annual cash
outlays, and appraised value of
$436,000. Carrying costs have recently
totalled $5,000 to $7,000 per year. The
Plan has actively attempted to lease the
property in the past but has been unable
to do so.
It is represented by the applicant that
the proposed transaction is in the best
interest and protective of the Plan
because it will allow the Plan to
increase its liquidity and diversify its
assets.
8. In summary, the applicant
represents that the transaction satisfies
the statutory criteria of section 408(a) of
the Act because: (1) the proposed sale
will be a one-time cash transaction; (2)
the Plan will experience no losses nor
incur any expenses from the Sale; (3)
the Plan will receive in cash as
consideration for the Sale the greater of
$479,160, or the fair market value of the
Land as determined at the time of the
Sale; and (4) the terms of the Sale are
no less favorable to the Plan than those
it would have received in similar
circumstances when negotiated at arm’s-
length with unrelated third parties.
FOR FURTHER INFORMATION CONTACT: Mr.
Gary H. Lefkowitz of the Department,
telephone (202) 219–8881. (This is not
a toll-free number.)
Wayne Obstetrical Group, P.A. Money
Purchase Retirement Plan (the Wayne
Plan); Pediatric Professional Associates,
P.A. Profit Sharing Plan (the Pediatric
Plan); Physicians for Women, P.A.
Profit-Sharing Plan and Trust (the
Physicians Plan; collectively, the Plans)
Located in Wayne, New Jersey
[Application Nos. D–10262, D–10263, and D–
10264]
 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices
Proposed Exemption
The Department is considering
granting an exemption under the
authority of section 408(a) of the Act
and section 4975(c)(2) of the Code and
in accordance with the procedures set
forth in 29 CFR Part 2570, Subpart B (55
FR 32836, 32847, August 10, 1990). If
the exemption is granted, the
restrictions of sections 406(a), 406(b)(1)
and (b)(2) of the Act and the sanctions
resulting from the application of section
4975 of the Code, by reason of section
4975(c)(1)(A) through (E) of the Code,
shall not apply to the proposed loans
totalling $530,000 by the Plans to S &
D Associates (S & D), provided that the
following conditions are satisfied:
(a) The terms and conditions of the
loans are at least as favorable to the
Plans as those the Plans could obtain in
comparable arm’s length transactions
with unrelated parties;
(b) At all times, the loans are secured
by a first mortgage on certain real
property (the Property), which is duly
recorded under New Jersey State law;
(c) At all times, the fair market value
of the Property, as established by a
qualified, independent appraiser, equals
at least 150% of the total outstanding
balances of the loans;
(d) At all times, no more than 25% of
the assets of each lending Plan are
invested in the loans;
(e) A qualified, independent fiduciary
has determined that the loans are in the
best interests of the Plans; and
(f) At all times, the independent
fiduciary enforces compliance with the
terms and conditions of the loans and of
the exemption, including foreclosure on
the Property in the event of default.
Summary of Facts and Representations
1. Wayne Obstetrical Group, P.A. is a
New Jersey corporation owned by
Seymour Eisner, Bernard Simon, Barry
Cohen, and Steven Domnitz (each a
25% shareholder). As of December 31,
1994, the Wayne Plan, a money
purchase pension plan, had
approximately nine participants and
total assets of $2,975,100. The trustees
of the Wayne Plan are Seymour Eisner,
Bernard Simon, and Barry Cohen.
Pediatric Professional Associates, P.A.
is a New Jersey corporation owned by
Alvin Edelstein, Abraham H. Topchik,
Herbert L. Cole, Israel I. Rayman, and
Geraldine Nelson (each a 20%
shareholder). As of July 31, 1995, the
Pediatric Plan, a profit sharing plan, had
approximately 18 participants and total
assets of $4,934,064. The trustees of the
Pediatric Plan are the five owners,
above.
Physicians for Women, P.A. is a New
Jersey corporation owned by Les A.
Burns, Kenneth Garrett, Leonard T.
Nicosia, and Arthur Suffin (each a 25%
shareholder). As of December 31, 1994,
the Physicians Plan, a profit sharing
plan, had approximately 15 participants
and total assets of § 3,384,784. The
trustees of the Pediatric Plan are the
four owners, above, and Edwin J. Pear.
2. An administrative exemption is
requested to permit the Plans to make
loans totalling $530,000 to S & D, a New
Jersey partnership. The partners of S &
D are as follows: Bernard Simon (a 19%
partner), Seymour J. Eisner (19%), Barry
Cohen (19%), Robert Natusch (12.5%),
Lawrence May (12.5%) and a
partnership known as 7 Oak Ridge
Partners (18%). The partners of 7 Oak
Ridge Partners are as follows: Les Burns,
Kenneth Garrett, Leonard Nicosia,
Edward Pear, Alvin Edelstein, Herbert
Cole, Geraldine Nelson, Ian Rayman,
and Abraham Topchik (all equal
partners).
Specifically, the Wayne Plan will lend
$230,000, the Pediatric Plan will lend
$100,000, and the Physicians Plan will
lend $200,000. At all times, no more
than 25% of the assets of each lending
Plan may be invested in the loans. It is
intended that S & D use the proceeds of
the proposed loans to retire an
outstanding first mortgage held by
Lakeland State Bank (Lakeland) on the
Property, which S & D owns and which
S & D currently leases to the sponsors
of the aforementioned Plans, among
other tenants. As of November 30, 1995,
the outstanding balance on this
mortgage was approximately $536,000,
which amount becomes due and
payable on January 1, 1997.
3. The loans will be secured by a first
mortgage on the Property, to be duly
recorded under New Jersey State law.
The Property, which consists of a two-
story mixed-use building of 9936 sq. ft.
on 1.34 acres, is located at 7 Oak Ridge
Road, West Milford, New Jersey. The
Property has office space on the first
floor that is currently being leased to the
Plans’ sponsors and to other
professionals, as well as eight one-
bedroom residential apartments on the
second floor. S & D will assign these
leases and the excess net rentals
collectible thereunder to the Plans as
additional collateral for the loans.
The Property was appraised by Mr.
Robert D. Clifford, MAI, RM of Value
Analysis Incorporated, an independent
general real estate appraiser certified in
the State of New Jersey. Relying on the
income approach to valuation, Mr.
Clifford concluded that the fair market
value of the leased fee interest of the
Property was $800,000, as of December
11, 1995. Thus the fair market value of
the Property equals at least 150% of the
55323
total outstanding balances of the loans,
which will be a continuing requirement
for the duration of the loans. The
Property will also be insured against
casualty loss in an amount not less than
the total principal amounts of the loans
(plus accrued but unpaid interest), with
the Plans as the named beneficiaries of
the policy.
4. The loans will each provide for an
interest rate of 11% per annum and a
term of 10 years, as evidenced by a
promissory note. The notes will require
S & D to make monthly payments of
principal and interest on the loans, to be
fully amortized over the 10-year term.
The Plans will pay no fees nor other
expenses relating to the loans.
Lakeland, an unrelated lender, has
held the current mortgage on the
Property for almost 10 years. The
mortgage has a balloon every five years,
which requires renegotiation. The last
mortgage extension and modification
agreement will expire on January 1,
1997. In keeping with the commercial
practices of other area banks, Lakeland
will not grant a ‘‘permanent mortgage’’
on such commercial property. In a letter
dated November 30, 1995, Lakeland
states that if it were their policy to grant
S & D a permanent mortgage, they
would, under the then current financial
conditions, seek an interest rate of 11%.
5. Naskret, Selzer & Associates, P.A.,
Certified Public Accountants (Naskret,
Selzer) represents in a letter from
Harold S. Selzer dated August 14, 1996
that they will serve as an independent
fiduciary to represent the interests of the
Plans with respect to the proposed
loans. Naskret, Selzerit represents that it
is unrelated to and independent of S &
D and the Plans’ sponsors and derives
less than 1% of its annual income from
S & D. Naskret, Selzer represents that it
has extensive experience as a fiduciary
under the Act, that it is knowledgeable
as to the subject loan transactions, and
that it acknowledges and accepts its
duties, responsibilities, and liabilities in
acting as a fiduciary with respect to the
Plans.
6. Naskret, Selzer has reviewed the
terms and conditions of the loans and
determined that such terms and
conditions are at least as favorable to the
Plans as those the Plans could obtain in
comparable arm’s length transactions
with unrelated parties, as evidenced by
the terms required by Lakeland in their
letter dated November 30, 1995. The
loans will be secured by a first mortgage
on the Property, which has been
independently appraised to insure that
its fair market value equals at least
150% of the total outstanding balances
of the loans. The leases of office and
apartment units in the Property and the
55324 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices
excess net rentals collectible thereunder
will serve as additional collateral for the
loans.
Naskret, Selzer represents that it
believes the proposed loans are in the
best interest of the Plans and their
respective participants and
beneficiaries. Naskret, Selzer has
determined that the proposed loans are
appropriate for the Plans in light of the
Plans’ overall investment portfolios
because the loans will add a degree of
stability and liquidity to the Plans.
Naskret, Selzer has also examined the
financial viability of S & D, based upon
S & D’s tax returns for years 1994 and
1995, and concluded that S & D has the
ability to repay the loans. S & D has
timely made all monthly payments
during the approximately 10 years
Lakeland has held the current mortgage
on the Property.
Finally, Naskret, Selzer will, at all
times, monitor and enforce S & D’s
compliance with the terms and
conditions of the loans and of the
exemption, including foreclosure on the
Property in the event of default.
7. In summary, the applicants
represent that the proposed transactions
satisfy the statutory criteria for an
exemption under section 408(a) of the
Act for the following reasons: (a) the
terms and conditions of the loans will
be at least as favorable to the Plans as
those the Plans could obtain in
comparable arm’s length transactions
with unrelated parties; (b) at all times,
the loans will be secured by a first
mortgage on the Property, which is duly
recorded under New Jersey State law; (c)
at all times, the fair market value of the
Property, as established by a qualified,
independent appraiser, will equal at
least 150% of the total outstanding
balances of the loans; (d) at all times, no
more than 25% of the assets of each
lending Plan will be invested in the
loans; (e) Naskret, Selzer, acting as an
independent fiduciary for the Plans, has
determined that the loans are in the best
interests of the Plans; and (f) at all
times, the independent fiduciary will
enforce compliance with the terms and
conditions of the loans and of the
exemption, including foreclosure on the
Property in the event of default.
Notice to Interested Persons
Notice of the proposed exemption
shall be given to all interested persons
by personal delivery or first-class mail
within 10 days of the date of publication
of the notice of pendency in the Federal
Register. Such notice shall include a
copy of the notice of proposed
exemption as published in the Federal
Register and shall inform interested
persons of their right to comment and/
or to request a hearing with respect to
the proposed exemption. Comments and
requests for a hearing are due within 40
days of the date of publication of this
notice in the Federal Register.
FOR FURTHER INFORMATION CONTACT: Ms.
Karin Weng of the Department,
telephone (202) 219–8881. (This is not
a toll-free number.)
National Baptist Publishing Board
Pension Plan (the Plan) Located in
Nashville, TN
[Application No. D–10283]
Proposed Exemption
The Department is considering
granting an exemption under the
authority of section 408(a) of the Act
and section 4975(c)(2) of the Code and
in accordance with the procedures set
forth in 29 CFR Part 2570, Subpart B (55
FR 32836, 32847, August 10, 1990). If
the exemption is granted the restrictions
of sections 406(a) and 406(b)(1) and
(b)(2) of the Act and the sanctions
resulting from the application of section
4975 of the Code, by reason of sections
4975(c)(1)(A) through (E) of the Code
shall not apply to the proposed cash
sale (the Sale) of common stock of
Citizens Savings Bank and Trust
Company (the Stock) located in
Nashville, Tennessee, by the Plan to
AmeriStar Investments and Trust, a
division of First American National
Bank (AmeriStar Investments), Trustee
of the Plan and party in interest with
respect to the Plan; provided that: (1)
the Sale is a one-time transaction for
cash; (2) the Plan experiences no loss
nor incurs any expenses from the Sale;
and (3) the Plan receives as
consideration from the Sale the greater
of the following amounts: (a) the fair
market value of the Stock as of the date
of the Sale plus interest at 6% for the
period March 31, 1993 through the date
the Stock is sold by the Plan; or (b) the
total cost of the investment, $100,000,
plus interest at 6% for the period March
31, 1993 through the date the Stock is
sold by the Plan.
Summary of Facts and Representations
1. The Plan is a defined benefit plan
sponsored by the National Baptist
Publishing Board (the Sponsor). As of
March 31, 1996, the estimated number
of Plan participants and beneficiaries
was 93. As of July 31, 1995, total assets
of the Plan equaled $1,387,496, with
approximately .35% of total Plan assets
as of that date invested in the Stock,
based on the fair market value
conclusion of an appraisal conducted as
of July 21, 1994.
2. On or about May 27, 1986, Dr. T.B.
Boyd III, President and CEO of the
Sponsor, used his authority to act on
behalf of the Sponsor and directed
AmeriStar Investments, a division of
First American National Bank (the
Bank), to purchase a seven year, six
percent convertible subordinated
debenture issued by Citizens Bank for
$100,000 (the Debenture). At the time
Dr. Boyd was also the Chairman of the
Board of Citizens Bank. AmeriStar
Investments, as applicant for this
exemption, represents that at that time,
Dr. Boyd owned approximately 42
percent of the outstanding common
stock of Citizens Bank. Various family
members owned an additional 11
percent of Citizens Bank’s outstanding
common stock.
The applicant further represents that
a representative of the Bank initially
advised against the investment, but
indicated that the Sponsor could direct
the Bank in writing to make the
investment on behalf of the Plan.
Pursuant to Dr. Boyd’s written
instructions, AmeriStar Investments
purchased the Debenture on behalf of
the Plan in June of 1986. In 1991, the
Bank discovered that Dr. Boyd had a
significant ownership interest in
Citizens Bank at the time of the Plan’s
purchase of the Debenture, and
consequently that the purchase of the
Debenture may have been a prohibited
transaction.2 As of 1991, the Debenture’s
market value was approximately
$37,000, and AmeriStar Investments
determined it was in the Plan’s best
interest to hold the Debenture until its
value increased, rather than sell the
Debenture immediately for a loss.
The Debenture paid interest at six
percent in accordance with its terms
until March 31, 1993 when it was
converted into Citizens Bank common
stock. Under its original terms, the
Debenture was to be converted into
1,100 shares of stock in June, 1993.
Citizens Bank offered to convert the
Debenture earlier than June, with a
conversion bonus of 110 shares.
Accordingly, as of March 31, 1993, the
Debenture was converted into 1,210
shares of Stock.
3. The applicant represents that an
active market does not currently exist
for the Stock and no dividends have
been paid on the Stock. According to a
valuation as of December 31, 1993,
prepared on July 21, 1994, by Mercer
Capital, an independent valuation firm,
2 The Department notes that the decision to
purchase the Debenture is governed by the fiduciary
responsibility requirements of Part 4, Subtitle B,
Title I of the Act. The Department is not proposing
relief herein for any violations of Part 4 of Title I
of the Act which may have arisen as a result of the
acquisition and holding by the Plan of the
Debenture, and subsequently, the Stock.
 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices
the fair market value of the Stock was
$5.60 per share. Based on that valuation,
the Plan’s total investment in the Stock
was worth $6,776.
4. The Bank desires to enter into the
proposed transaction in order to protect
the participants in the Plan from the
risks of investment loss associated with
the Stock. The applicant represents that
the best interest of the plan and its
participants and beneficiaries are
protected by disposing of the Stock for
a sales price in excess of its fair market
value and by restoring certain lost
earnings to the Plan. In this regard,
AmeriStar proposes to purchase the
Stock 3 for the greater of the following
amounts: (a) the fair market value of the
Stock as of the date of the Sale, plus
interest at 6% for the period March 31,
1993 through the date the Stock is sold
by the Plan; or (b) the total cost of the
investment, $100,000, plus interest at
6% for the period March 31, 1993
through the date the Stock is sold by the
Plan.
5. In summary, the applicant
represents that the proposed transaction
will satisfy the criteria for an exemption
under section 408(a) of the Act for the
following reasons: (1) the Sale is a one-
time transaction for cash; (2) the Plan
experiences no loss nor incurs any
expenses from the Sale; and (3) the Plan
receives as consideration from the Sale
the greater of the fair market value of the
Stock as of the date of the Sale, plus
interest at 6% for the period March 31,
1993 through the date the Stock is sold
by the Plan; or the total cost of the
investment, $100,000, plus interest at
6% for the period March 31, 1993
through the date the Stock is sold by the
Plan.
NOTICE TO INTERESTED PERSONS: Notice
will be distributed to interested persons
within 30 days of the date of publication
of this Notice in the Federal Register.
Comments and requests for a hearing are
due within 60 days of the publication
date of this Notice.
FOR FURTHER INFORMATION CONTACT: Mr.
Gary H. Lefkowitz of the Department,
telephone (202) 219–8881. (This is not
a toll-free number.)
General Information
The attention of interested persons is
directed to the following:
(1) The fact that a transaction is the
subject of an exemption under section
408(a) of the Act and/or section
4975(c)(2) of the Code does not relieve
3 AmeriStar
is also attempting to sell the Stock to
an unrelated third party. If the sales price is less
than $100,000 plus interest at 6% from March 31,
1993 to the date of the Sale, AmeriStar will make
up the difference to the Plan.
a fiduciary or other party in interest of
disqualified person from certain other
provisions of the Act and/or the Code,
including any prohibited transaction
provisions to which the exemption does
not apply and the general fiduciary
responsibility provisions of section 404
of the Act, which among other things
require a fiduciary to discharge his
duties respecting the plan solely in the
interest of the participants and
beneficiaries of the plan and in a
prudent fashion in accordance with
section 404(a)(1)(b) of the act; nor does
it affect the requirement of section
401(a) of the Code that the plan must
operate for the exclusive benefit of the
employees of the employer maintaining
the plan and their beneficiaries;
(2) Before an exemption may be
granted under section 408(a) of the Act
and/or section 4975(c)(2) of the Code,
the Department must find that the
exemption is administratively feasible,
in the interests of the plan and of its
participants and beneficiaries and
protective of the rights of participants
and beneficiaries of the plan;
(3) The proposed exemptions, if
granted, will be supplemental to, and
not in derogation of, any other
provisions of the Act and/or the Code,
including statutory or administrative
exemptions and transitional rules.
Furthermore, the fact that a transaction
is subject to an administrative or
statutory exemption is not dispositive of
whether the transaction is in fact a
prohibited transaction; and
(4) The proposed exemptions, if
granted, will be subject to the express
condition that the material facts and
representations contained in each
application are true and complete, and
that each application accurately
describes all material terms of the
transaction which is the subject of the
exemption.
Signed at Washington, DC, this 22nd day
of October, 1996.
Ivan Strasfeld,
Director of Exemption Determinations,
Pension and Welfare Benefits Administration,
Department of Labor.
[FR Doc. 96–27441 Filed 10–24–96; 8:45 am]
BILLING CODE 4510–29–P
[Prohibited Transaction Exemption 96–80;
Exemption Application No. D–10255, et al.]
Grant of Individual Exemptions;
Lehman Brothers, Inc.
AGENCY: Pension and Welfare Benefits
Administration, Labor.
ACTION: Grant of individual exemptions.
SUMMARY: This document contains
exemptions issued by the Department of
55325
Labor (the Department) from certain of
the prohibited transaction restrictions of
the Employee Retirement Income
Security Act of 1974 (the Act) and/or
the Internal Revenue Code of 1986 (the
Code).
Notices were published in the Federal
Register of the pendency before the
Department of proposals to grant such
exemptions. The notices set forth a
summary of facts and representations
contained in each application for
exemption and referred interested
persons to the respective applications
for a complete statement of the facts and
representations. The applications have
been available for public inspection at
the Department in Washington, D.C. The
notices also invited interested persons
to submit comments on the requested
exemptions to the Department. In
addition the notices stated that any
interested person might submit a
written request that a public hearing be
held (where appropriate). The
applicants have represented that they
have complied with the requirements of
the notification to interested persons.
No public comments and no requests for
a hearing, unless otherwise stated, were
received by the Department.
The notices of proposed exemption
were issued and the exemptions are
being granted solely by the Department
because, effective December 31, 1978,
section 102 of Reorganization Plan No.
4 of 1978 (43 FR 47713, October 17,
1978) transferred the authority of the
Secretary of the Treasury to issue
exemptions of the type proposed to the
Secretary of Labor.
Statutory Findings
In accordance with section 408(a) of
the Act and/or section 4975(c)(2) of the
Code and the procedures set forth in 29
CFR Part 2570, Subpart B (55 FR 32836,
32847, August 10, 1990) and based upon
the entire record, the Department makes
the following findings:
(a) The exemptions are
administratively feasible;
(b) They are in the interests of the
plans and their participants and
beneficiaries; and
(c) They are protective of the rights of
the participants and beneficiaries of the
plans.
Lehman Brothers, Inc. (Lehman)
Located in New York, New York
[Prohibited Transaction Exemption 96–80;
Exemption Application No. D–10255]
Exemption
The restrictions of section 406(a) of
the Act and the sanctions resulting from
the application of section 4975 of the
Code, by reason of section 4975(c)(1) (A)